October 19, 2011

Defamation on the Internet & the Constitutional Right to Post Anonymously. Michigan Court Will Decide....

Identifying an anonymous blogger or author of a comment on a website in an internet defamation case presents challenges for plaintiffs, defendants and the court. The plaintiff in a defamation lawsuit, of course, wants to identify the person who they believe engaged in online libel or slander, idneitifed int eh COmplaint as John Doe. But there is a constitutional right attaching to anonymous speech under the First Amendment to the United States Constitution. Thus, the person whose speech is alleged to be defamatory may have a constitutional right to remain anonymous. Courts in John Doe litigation are typically asked by plaintiff's attoreny is an ex parte fashion to allow discovery necessary to “identify” the John Doe defendant in the case.

In this interview of Paul Allen Levy, attorney for Public Citizen, we explore the so-called “Dendrite rule” and its potential application in Michigan to defamation cases. States that have applied a heightened standard of showing by plaintiffs in defamation cases in order to identify anonymous John Doe defendants include: Maryland, District of Columbia, New Jersey, Tennessee, New York, California, Connecticut, Nevada, Arizona, Texas, Pennsylvania, Massachusetts, and potentially Michigan in the near term.

Welcome to Defamation Law Radio my name is Enrico Schaefer, and today we’re going to have a show dedicated to identifying anonymous bloggers with John Doe subpoenas. We have a very special guest today, Paul Alan Levy, from Public Citizen. Mr. Levy is an attorney with this public interest group that helps defend on a pro bono basis a number of First Amendment interests across the internet, including on issues of the constitutional anonymity on the web. Mr. Levy is a very accomplished attorney. He’s argued many cases before many U.S. Courts of Appeals and the United States Supreme Court. Mr. Levy, thank you for joining us today.

Paul Alan Levy: Glad to be here.

Enrico Schaefer: Today, we’re going to talk a little bit about a case in Michigan, where I’m from, and it involves a lawsuit filed by the Thomas M. Cooley Law School against a variety of John Doe defendants on allegations of internet defamation, defamation on a particular web site on a particular domain with a number of other John Doe defendants who allegedly have posted defamatory comments on that site.

The posture of the case is such that the plaintiff has issued a number of subpoenas and is trying to identify one or more of these John Doe defendants, and the court is in a position to make a ruling in the near term on whether or not a particular subpoena to a particular ISP is going to be quashed.

Mr. Levy, Public Citizen decided to jump in as an amicus in the Thomas M. Cooley Law School v. John Doe defamation case. Why is Public Citizen participating in this case?

Paul Alan Levy: It is the first case that we know of that present s the question of what the appropriate standard for subpoenas to identify anonymous speakers in Michigan. So, we wanted to make sure that our perspective was shared and, in fact, what we consider to be the right arguments in support of our standard were put forward so the judge can make the best possible decision.

Enrico Schaefer: And just so that everyone understands, Paul, the reality here is that when a plaintiff files a John Doe suit, such as was done here by Thomas M. Cooley Law School, and they’re able to get an early ex parte order for discovery from the court in order to identify John Does, really, they’re uncontested at that posture. That is to say, there’s no one necessarily on the other side of the case to challenge them in any way, correct?

Paul Alan Levy: That may be correct. It really depends on the procedures set forth by the court in the particular circumstances. In some jurisdictions in some states, there’s actually a rule if you have, for example, the case of pre-litigation discovery, there’s a rule requiring notice to the person who’s expected to be a defendant, and although you can’t give notice by sending a letter to an anonymous person, very often, you’ll have an email address, for example. Alternatively, you may have the ability to post a notice on the blog. So, it’s not always true, but it is certainly sometimes true that there’s nobody on the other side.

Enrico Schaefer: Exactly. And Public Citizen, just by way of background, Public Citizen’s interest in these types of issues is what?

Paul Alan Levy: Well, it’s really an interest that goes in two different directions. On the one hand, people ought to have the right to speak anonymously online when they don’t commit either common law or statutory wrongs. And on the other hand, people oughtn’t be able to hide behind their pseudonyms when they’re engaging in really outrageous conduct for which there is a sound legal remedy. So, what we’ve argued is that the court ought to strike a balance between those two interests by protecting the right to anonymous speech when it looks as if the defendant has done no wrong, while providing access to discovery when the plaintiff is able to present a solid legal and factual case to show that they’ve got a realistic chance of winning their case.

Enrico Schaefer: Is there a constitutional right, Paul, to post anonymously on the web?

Paul Alan Levy: There is certainly an anonymous right, or there’s a First Amendment right to speak anonymously well recognized by a long line of supreme court precedent, and the First Amendment applies online as it applies in other area of our lives. So, yes, there is plainly a right. The United States Supreme Court has said both of those things. Now, it’s only at the state appellate court level and the federal lower court level, that we’ve had decisions drawing those two lines of authority together and saying, yes, there is a right to speak anonymously online and we’re going to enunciate standards for decided when subpoenas to breach that right should or should not be granted.

Enrico Schaefer: Okay, so that gets us right to the so-called Dendrite case, the Dendrite v. Doe case, which is a case that you were heavily involved in, correct?

Paul Alan Levy: Right. We presented a brief as a friend of the court both at the trial court level and at the appellate level in New Jersey and the test that the court enunciated was a test that proposed in our amicus briefs.

Enrico Schaefer: Yes. And so, explain to the listeners what the premise of the Dendrite case was in terms how courts, or at least how that court, which, of course, other courts have picked up on, how that court decided to balance these competing interests of the constitutional right to speak anonymously versus the necessity of plaintiffs to identify John Does when, in fact, they have meritorious claims.

Paul Alan Levy: Well, the court really did two things. It set up some procedural hurdles for the plaintiffs to cross and some substantive hurdles. The procedural hurdles are that the plaintiff needs to use its best efforts to give notice to the anonymous defendant that there’s a subpoena pending that threatens the defendant’s right to speak anonymously. That might involve sending an email. It might involve posting a notice on a message board or on a web site. It may involve asking the internet service provider to use its resources to derive the information to the anonymous defendant. And then, the court needs to leave enough time for the anonymous defendant to get the notice, to find counsel and, for example, there is a right to proceed pro se in the court, but it’s awfully hard proceed anonymously in the courts because how does the court know where to send the information, and how does a court satisfy itself if there’s really somebody that they can hold responsible making the filings. So, as a practical matter, I mean, I’ve seen Does defend themselves anonymously by sending a brief to the court asking it that it be filed without providing their name, but as a practical matter, you need a lawyer if you’re a Doe. And then, the lawyer needs enough time to figure out what the facts are, figure out whether a valid defense can be made, and then present arguments about why the subpoena shouldn’t be granted. So, those are the procedural rights.

The substantive rights are that the plaintiff, who’s seeking the Doe’s identify, has to enumerate in very specific terms the words on which the plaintiff is suing. The plaintiff has to articulate legal claims that pass, sort of, legal scrutiny under a motion to dismiss standard, and then the plaintiff has to come up with evidence to support the legal claims, at least the kind of evidence that a plaintiff ought to have at the beginning of a lawsuit, for example, in the defamation area, there’s no reason why the plaintiff ought not have information showing or evidence showing the statements about the plaintiff were false. The plaintiff ought to have evidence that the adverse speech about it has caused a damage or injury. And finally, what Dendrite said, and what many other courts of appeals had said in this area as well, is that then you have to take all that’s been put in by both sides and strike a balance so that, for example, if there’s a greater danger of retaliation, the plaintiff has to make a larger showing, or if there’s a very strong claim for the plaintiff and a relatively weak First Amendment for the defendant, such as, for example, in the case of commercial speech or such as in the downloading case where it’s an allegation of copyright infringement, then the plaintiff is in a stronger position and maybe has less of an evidentiary burden to meet before the information is ordered to be disclosed.

Enrico Schaefer: Sure.

Paul Alan Levy: So, that’s the Dendrite standard in a long nutshell.

Enrico Schaefer: And it has been adopted by many other state courts over time, correct?

Paul Alan Levy: That’s right. The big debate among the state courts and federal courts has been should we have that last balancing stage after the plaintiff is coming in with evidence or is it enough that the plaintiff has come in with enough evidence to make it seem likely that the plaintiff has a realistic case. And some courts would say, once the plaintiff meets that meets that evidentiary burden, the balancing is at an end.

Enrico Schaefer: In this Thomas M. Cooley Law School case, Ingham Circuit Court, what is the status of that case? What is the posture? What is the court expected to rule on here in the near term?

Paul Alan Levy: Well, in this case, the ISP actually gave up the information and before the deadline for complying with the subpoena, and the first thing that the Does’ lawyer had to do was to get a clawback order. So, the trial court said, look, this is a disclosure of information that was claimed to be privileged, and we’re not going to let the plaintiff use this information and must give the information over to the court, and that’s happened. So, now, the information provided by the internet service provider is solely in the custody of the state court, and the state court now has to decide, should I quash the subpoena and grant the protective order sought by the Doe defendant, or should I let the plaintiff have the information and decide that the plaintiff had a better argument here, and the subpoena ought to have been enforced and therefore, I’m going to give the information back to the plaintiff to use at it will, such as by listing the defendant as a defendant in the defendant’s own name and sending a summons along with a complaint so the case can get going.

Enrico Schaefer: So, we’re about to find out, perhaps, in Michigan whether the Dendrite Standard is going to be adopted, at least, at the trial court level.

Paul Alan Levy: That’s right, and there’s been oral arguments scheduled for next Monday, October 24.

Enrico Schaefer: Well, that’s great. I really appreciate you being on the show today, Paul Levy. Anytime you want to come back and join us, we’d be happy to have you.

Paul Alan Levy: Glad to be with you.

Enrico Schaefer: Thank you very much. And that’s it for Defamation Law Radio for today. I’m signing off, have a great day.

Comments

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